The majority of commentators on this fictitious case find very similar philosophical legal principles. In her 2012 blog article for ‘legalese’, Lawyer Kavita Jitani proposes that legal positivism, literal meaning, purposive construction and natural law are all present in the judgments reached. In Peter Subers book he references positivism and natural law throughout the book. Indeed, if we look to the author himself we find that, throughout his career, he was often regarded as a staunch critic of legal positivism and argued In favor of a limited form of natural law.
Looking at the case it becomes apparent that the views of the judges can be set out as follows:
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Chief Justice Truepenny: Takes a literal interpretation to the statute (but suggests support for petition to the Executive)
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Justice Foster: Largely argues for a ‘state of nature’ but also refers to a purposive approach to interpretation
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Justice Tatting: Argues against natural law and purposive approach and provides no judgment
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Justice Keen: Feels that moral considerations are void and that a separation of powers should not allow an appeal to the Executive for clemency
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Justice Handy: Common sense approach, arguably more closely aligned to ‘The golden rule’.
As we can see above, there are various legal philosophies at ‘loggerheads’. This is almost certainly Fullers intention behind this case. At a fundamental level the Natural Law competes against its established opponent, legal positivism, therefore, and for the sake of brevity and conciseness I have focused on the conflicting perspectives of both these opposing views.
Natural law seeks to connect morality and the law and it could be said that they are ‘one and the same’. With natural law theory there is a belief that our morals come from our very nature and therefore what is right or wrong cannot be defined by a government or a monarch. Our steer is provided by what we, as humans, feel is necessary to live a positive, happy, good existence. By extension therefore, in natural law theory, a law that doesn’t provide sound judgment, should not be followed. In the case of the explorers, Justice Foster argues that the Statutes of Newgarth do not apply in this case as the explorers were not ‘in a “state of civil society” but in a “state of nature” ’. Critics of this approach (in this case Justice Tatting) often argue that its reliance on theological or metaphysical belief call into question its ability to be applied plausibly or rationally.
Legal Positivism on the other hand takes the opposing view., A legal positivist, can acknowledge that the law can be floored in its construction, but it still remains the law and, by extension, should be applied regardless. Chief Justice Truepenny and, to a lesser extent, Justice Keen are seen to favor this approach. Truepenny in his literal interpretation of the statute and Keen in his view that, moral considerations, cannot influence the case.
In summary, it is clear that there are two opposing schools of philosophical thought in Law, namely natural law and legal positivism. In his seminal work, Fuller appears to provide the reader with the opportunity to consider why the law exists, but also, in offering us five hypothetical opinions he demonstrates the varied and inconsistent way in which the law can be approached. It is by no accident that the final fate of the men is not broached. In not finishing the storey, Fuller keeps us engaged long after we have stopped reading, making us ruminate and reflect on each of the judges views and perhaps consider which of the 'two schools' of thought, we might fit into.
Other references:
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Lonlfuller.org, 'Lon L.Fuller Official Homepage' (Lonlfuller.org, 2013) <http://www.lonlfuller.org/> accessed 17 March 2016
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S Hanson, Legal method, skills and reasoning (Third Ed , Routledge Cavendish (c) 2010) 143-54
L Fuller, 'The Case of the Speluncean Explorers' [1949] vol. 62(4) Harvard Law Review 616-645
Much comment has been made on the odd number of judges used by Fuller in the case, described by Peter Suber as “the tug of pedagogical neutrality”. (P Suber, ‘the Case of the Speluncean Explorers: Nine New Opinions’ [1998]. Ed 1. Routledge. Pg. 14(preface)
K Jitani, 'The case of the Speluncean Explorers - an analytical study' (Legalese, 31 January 2012 ) <http://legaleseetc.blogspot.co.uk/2012/01/case-of-speluncean-explorers-analytical.html>accessed 17 March 2016
Ibid 2
Ibid 1 (para 16)
by
mausten1981yahoocouk (student)
